STATE OF WASHINGTON
ETHICS ADVISORY COMMITTEE
OPINION NO. 97-12
Question
A superior court has requested local attorneys to apply for
commissioner pro tem positions to assist on the family law docket and in
the ex parte department. Commissioners pro tem are compensated by the
court. Deputy prosecuting attorneys and assistant attorneys general who
work in either the paternity/nonsupport or child support/public assistance
area have received permission from their offices to serve as commissioners
pro tem if they use their vacation time. The attorneys who have applied
would not hear any cases in which their offices have appeared as a party.
However, as commissioners pro tem they would serve on family law dockets
and in the ex parte department where a significant percentage of the
caseload consists of family law cases with minor children.
1. With respect to the ex parte department, does the possibility that
a family law case could develop contested child support and/or paternity
issues in the future present either a conflict of interest and/or an
appearance of fairness which would disqualify these attorneys from signing
temporary orders in cases in where there are minor children but neither the
state nor the county is currently a party?
2. With respect to the family law calendars, could these attorneys
hear and decide temporary orders in family law cases, including setting
child support, where neither the state nor the county is currently a party?
Does this situation present a conflict of interest and/or appearance of
fairness issue?
3. Does the employment of either a deputy prosecutor or an assistant
attorney general by the court as a commissioner pro tem present either an
ethical or separation of powers issue where the commissioner pro tem is
compensated by the court?
Answer
The Application of the Code of Judicial Conduct at section (A)
provides in part that anyone who is an officer of a judicial system and who
performs judicial duties including a court commissioner is a judge within
the meaning of the Code. The Application at section (A)(2) of the Code of
Judicial Conduct provides in part that judges pro tem must comply with
Canon 2(A) and (B) while they are serving as a judge. Canon 2(A) provides
in part that judges should act at all times in a manner that promotes
public confidence in the integrity and impartiality of the judiciary.
Canon 2(B) provides in part that judges should not allow relationships to
influence their judicial conduct or judgment. Canon 3 provides that
judicial duties of judges should take precedence over all other activities;
these duties include all the duties of office prescribed by law. Canon
3(B)(1)
provides judges should diligently discharge their administrative
responsibilities, maintain professional competence in judicial
administration, and facilitate the performance of the administrative
responsibilities of other judges and court officials.
1 and 2. With respect to serving on the family law docket or in the
ex parte department, either would be appropriate if commissioners pro tem
do not hear any cases in which their respective offices have appeared as a
party. Even though the attorneys may sit as commissioners pro tem, the
superior court needs to monitor the cases over which these commissioners
pro tem have presided to determine if they are becoming contested because
this could present a conflict of interest.
While serving on the family law docket and in the ex parte department,
commissioners pro tem should disclose that they are presently employed by
either the attorney general or the prosecuting attorney and that their
duties include working in either paternity/nonsupport or child
support/public assistance and offer to withdraw. If this practice results
in a volume of disqualification which disrupts the administration of
justice, the superior court may need to consider whether to remove the
names of these individuals as pro tem commissioners.
3. The fact that a pro tem commissioner is a deputy prosecuting
attorney or an assistant attorney general does not present by itself an
ethical concern. Determination of a separation of powers question is
beyond the scope of the committee’s authority. There may, however, be
restrictions imposed by either statute or ordinance on the assistant
attorney general or deputy prosecuting attorney taking vacation time in
order to serve as a pro tem commissioner.
Comment
See Rules of Professional Conduct (RPC) Title 1 for rules relating to
the client-lawyer relationship, conflict of interest and imputed
disqualification.